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Petitioner: IFTIKHAR AHMED and another VS Respondent: THE STATE and others
Court Name: Supreme Court of Pakistan Judge(s): Nasir-ul-Mulk, Faqir Muhammad Khokhar, M. Javed Buttar Title: IFTIKHAR AHMED and another vs THE STATE and others Case No.: Criminal Appeals Nos.196 and 197 of 2006 Date of Judgment:2008-11-05 Reported As: 2009 SCMR 1142 Result: Order accordingly
JUDGMENT
JUDGMENT ' M. JAVED BUTTAR, J.--- This judgment shall dispose of the aforesaid appeals arising out of judgment dated 14-5-2003 passed by a Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeals filed by accused/convicts as well as appeals filed by the complainant Muhammad Amin and the State assailing acquittal of accused Khalid Hussain and seeking enhancement of sentence awarded to respondent Muhammad Zaman, were disposed of. 2. This Court vide order dated 22-3-2006 granted leave to' appeal in Criminal Petitions Nos.446-L and 461-L of 2003 and the present appeals have arisen out of the said petitions. At the time of hearing of those petitions, the petition filed by the complainant Muhammad Amin (Criminal Petition No,461-L of 2003) was dismissed to the extent of Muhammad Zaman as not pressed. Criminal Appeal No,196 of 2006 has been filed by the convict Iftikhar Ahmed and Criminal Appeal No,197 of 2006 has been filed by the complainant Muhammad Amin which is now directed against the convict Iftikhar Ahmed (Ex-Police Head Constable) for the enhancement of sentence as the death sentence awarded to him by the trial Court was reduced to imprisonment for life by the High Court and four doctors (respondents 2-5), who though convicted by the trial Court, were acquitted by the High Court. 3. The convict Iftikhar Ahmed, the abovesaid Muhammad Zaman, the acquitted co-accused Khalid Hussain and 4 doctors were tried by the Sessions Judge, Sialkot for committing Qatl-e-Amd of deceased Muhammad Shakeel Amin son of complainant Mohammad Amin, by means of blunt weapon and destroying the evidence of such act in order to shield the custodial killing by members of the police personnel and Doctors, the accused. Learned trial Court vide its judgment dated 27-6- 1998 while acquitting Khalid Hussain accused, convicted Head Constable Iftikhar Ahmed under
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section 365-A, P.P.C. And sentenced him to imprisonment for life. His property was also ordered to be confiscated in favour of the State. He was also convicted under section 302(b), P.P.C. And sentenced to death along with compensation amount of Rs,25,000 payable to the legal heirs of the deceased as required under section 544-A of Cr.P.C. Or in default whereof to further suffer six months imprisonment. S.H.O. Muhammad Zaman was convicted under section 119, P.P.C. And sentenced to 5 years' R.I. He was, however, extended the benefit of section 382-B of the Cr.P.C. Dr. Mubashar Ahmed, (Ex-D.H.O., Sialkot), Dr. Ghafoor Hussain (ExM.O. Civil Hospital, Sialkot), Dr. Muhammad Nawaz (Ex-M.S. Tehsil and District Hospital, Sialkot) and Dr. Rustam Ali (Ex-M.S. District Hqrs. Hospital, Sialkot) respondents Nos.2-5 in Criminal Appeal No,197 of 2006 were held guilty under section 201, P.P.C. And were sentenced to two years' R.I. Each and were also directed to pay fine of Rs,20,000 each or in default whereof to further suffer three months' S.I. Each. They were also convicted under section 218, P.P.C. And sentenced to one year's R.I. Each with payment of fine of Rs,5,000 each or in default whereof to further suffer one month's S.I. Each. The sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C., however, was extended to them. The amounts of fines, if recovered, were directed to be paid to the legal heirs of the deceased. It may be mentioned here that the co-accused Muhammad Arshad, A.S.-I. Was declared as an absconder and the proceedings under section 514, Cr.P.C. Were initiated against him. 4. The abovesaid judgment of the trial Court led to Criminal Appeals No,671 of 1998 filed by Iftikhar Ahmad, 535 of 1998 filed by the abovesaid 4 doctors, 592 of 1998 filed by Inspector/S.H.O. Muhammad Zaman, 1193 of 1998 filed by the State against Muhammad Zaman and acquitted accused Khalid Hussain and Criminal Revision No,400 of 1998 filed by complainant Muhammad Amin against Muhammad Zaman and others including the Doctors. The learned trial Court forwarded the Murder Reference No,384 of 1998 for confirmation of death sentence awarded to Iftikhar Ahmed. 5. The learned Division Bench of the Lahore High Court vide its judgment dated 14-5-2003, while maintaining the conviction of Iftikhar Ahmed, reduced his sentence of death to imprisonment for life but the amount of compensation payable by him was enhanced from Rs,25,000 to Rs,1,00,000 payable to the legal heirs of the deceased or in default whereof to further suffer S.I. For 6 months. The appeal was accordingly dismissed with the said modifications. S.H.O. Muhammad Zaman, by then, had already undergone his sentence and he opted not to press his appeal which, therefore, was dismissed as not pressed. The appeal of four doctors was accepted and they were acquitted of the charge by extending them the benefit of doubt. The appeal of the State and the criminal revision filed by the complainant were dismissed. The sentence of death was not confirmed and the Murder Reference was answered in the negative, hence these appeals. The convict Iftikhar Ahmed has assailed his conviction and sentence and the complainant Muhammad Amin has assailed the acquittal of Doctors and has asked for the enhancement of sentences awarded to the convict Iftikhar Ahmed. 6. The matter pertains to case F.I.R. No,233 of 1997 dated 24-4-1997 registered at Police Station Pasrur, District Sialkot under sections 302/342/109 and 34, P.P.C. At the instance of complainant Muhammad Amin for the custodial killing of-his son Shakeel Ahmed as his death had taken place while he was in Police custody in the night between 23/24 of April, 1997. 7. The complainant Muhammad Amin had made an application to Abdul Ahad D.S.P. Pasrur and while appearing in Court as witness P.W.4, he supported the complaint Exh.P.B. As under:--- "Shakeel Amin deceased was my son. He was running a clinic in our village. On 22-4-1997 at 3 p.m. 4 police officials of whom the names of Arshad A.S.-I. P.O. And Iftikhar Ahmad Hawaldar accused were known to me, came to the clinic of my deceased son. The deceased was preparing to go to Gujranwala to purchase some medicines and had a sum of Rs,12/13,000 with him. These police officials took away the deceased in a white coloured car. I along with my son Naseer and nephew
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Ghulam Asghar went to Amanullah Lumberdar of our village narrated him the occurrence. First Amanullah telephoned the police station from the village but the police denied having brought the deceased along with it and then we along with Amanullah went to the police station. There we met Arshad A.S.-I. And Iftikhar Hawaldar accused who at first denied having brought the deceased with them. Later on both of them conceded having brought the deceased but claimed that it was in the knowledge of the S.H.O. And that we should have a talk with him Both of these accused told us to come next morning. On the next morning we again went to the Police Station Pasrur but Arshad A.S.-I. And Iftikhar accused did not even care to listen to us. We then met the S.H.O. In his office and informed him who told us to settle terms with Muhammad Arshad A.S.-I. And Iftikhar Hawaldar. We again contacted Arshad A.S.-I. And Iftikhar Hawaldar who told us that they would come to our village. We met Shakeel deceased in the police station who told us that Arshad A.S.-I., Iftikhar H.0 and Zaman S.H.O. Had tortured him. We returned to our village. On the same day which is 23-4- 1997 Arshad A.S.-I. And Iftikhar HC came to our village in the after-noon. They demanded a minimum of Rs,10,000 for setting free my son and claimed that they had settled this amount with the S.H.O. We told them that as our son was innocent we cannot pay this much amount. Both of the police officials then returned to the police station and had again tortured my son. On the same night at about 1-00 a.m. Some employee of the police station came to us and told us that we are required at the police station, on which I along with Amanullah Lamberdar, my son Naseer and my relative Ghulam Asghar went to the police station. We went there and saw that my son had been killed and the police had made a fake story of his committing suicide. I then moved written application Exh.P.B. To the D.S.P. Pasrur. Thereafter the doctors who are the accused persons had in order to protect the other accused gave fictitious report in the post-mortem examination. I had then moved an application to the learned District Magistrate for the disinterment to dead body. This application was accepted and the dead body was exhumed and fresh post-mortem examination was conducted by a Board of Doctors." "I was not present at the clinic when the police had taken away my son. I at that time was present in my house and my younger son had told me about it." ' 8. P.W.5 Amanullah supported the prosecution story as under:--- "On 22-4-1997 at about 3-30 p.m. I was sitting in my Dera in village Chhichharwali when Ghulam Asghar, Master Amin and Naseer Ali had come to me and told me that Iftikhar Ahmad HC and Arshad A.S.-I. Accused person along with 2 other police officials had taken away Shakeel Amin. I accompanied them to the P.C.O. In our village and on telephone inquired from the police station. I contacted Iftikhar HC through the Moharrer on telephone but he told me that he does not know as to why the deceased was brought by them to the police station. On it we all-four went to the police station Pasrur, where we met Arshad A.S.-I. And Iftikhar H.C. They told us that the matter was in the knowledge of the S.H.O. And that we should go home and come next morning. We returned to our village. On 23-4-1997 we went to the police station early in the morning and met Arshad A.S.-I. And Iftikhar accused persons. They did not pay any heed to us. Then we met the S.H.O. In his office and apprised him of our version, but he told us to contact Arshad A.S.-I. And Iftikhar H.C. We met Shakeel deceased who was on the upper story of the police station. Iftikhar accused was also with us and he brought down the deceased. The deceased told us to help him as he was being tortured. We again requested the police to set the deceased free as he was innocent but they told us to go home and they would meet us in our village in the afternoon. After 12-00 noon we were sitting in the Adda Chhichharwali where Arshad A.S.-I. And Iftikhar H.C. Came and demanded from us a sum of Rs,10,000 for the release of the deceased. As the complainant on account of the innocence of the deceased did not agree to pay the bribe, the police officials went back. On the night between 23 and 24 April, 1997 I was sleeping in my house I was awoken by my son on account of call bell and when I went to the Baithak of my house Mian Bashir Ahmed S.-I. Of Police Station Pasrur was sitting.
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He told me to take along the father of Shakeel deceased and should come to the police station. On it I along with Naseer, Ghulam Asghar and Amin P. Ws accompanied the police to the police station in an official vehicle. In the police station we were informed that the deceased had committed suicide." 9. P.W.6 Muhammad Shafique was a chance witness. According to him, when he learnt about the police having taken Shakeel Ahmed to the police station he went there enquiring about it and he saw that Shakeel was being beaten by Iftikhar appellant at the instigation of Muhammad Zaman Inspector/S.H.O. But he did not' see the actual occurrence when his death was occurred. 10. As it was a case of custodial killing, therefore, initially the dead body of the deceased was sent for post-mortem examination to a Board of the Doctors (who were acquitted by the High Court and are now respondents Nos.2-5 in Criminal Appeal No,197 of 2006 filed by the complainant Muhammad Amin) who conducted the post-mortem examination of the deceased on 24-4-1997 and found the following injuries:--- "(1) A lacerated wound with ragged margins 7 c.m. x 3 c.m. On right fronto parieto, temporal region and antero posterior direction about 3 c.m. Above, the surround bone of the wound was depressed. The margins of this was black. The sample of the margins of skin and surrounding area has been taken and are being sent to Histopatholigist for his opinion about the wound. (2) Lacerated wound 2-1/2 c.m. x 2 c.m. Antero lateral and fronto temporal region about 4 c.m. Above the left eyebrow. Margins of this wound are also taken and are being sent for Histopatholigist for analysis." ' The said Board recorded its opinion in the post-mortem examination report dated 24-4-1997 (Marked as "A") as under:--- "Injury Nos.1 and 2 are grievous and ante-mortem caused by firearm. In our opinion death is caused due to haemorrhage and shock as the result of injury Nos.1 and 2. (Sd.) Medical Superintendent (Sd.) D.H.O. (Sd.) S.M.O. ' However, this post-mortem examination report was assailed particularly against the opinion that a fire-arm had been used. It was alleged that the police was trying to cover up its crime of killing by torture by giving it a color of suicide through fire-arm. The complainant assailed the above post- mortem report through a complaint made on 6-5-1997 to the District Magistrate Sialkot and asked for disinterment of the dead body of the deceased Shakeel Ahmad and re-post-mortem examination by a Medical Board headed by the Police Surgeon Lahore, in order to know the nature of injuries sustained by his deceased son which led to the constitution of another Medical Board consisting of six Doctors. In the meanwhile, the accused doctors who were members of the 1st Medical Board wrote a letter to the S.H.O. Police Station Pasrur, Sialkot, on 10-5-1997 stating that the opinion given by them in the above said post-mortem report dated 24-4-1997 was merely provisional and the final and definite opinion will be given by them after the receipt of reports of Chemical Examiner, Punjab, and Histopathology's and vide their another report dated 27-6-1997 (Exh.D.K.) they changed their opinion as under:-- "Board on the aforesaid reports, the members of the board are of the opinion that injury No,1 is most probably caused by blunt edged weapon. This injury is grievous in nature and dangerous to life and is ante-mortem. Injury No,2 is post-mortem injury. ' The death occurred due to injury No,1 which is sufficient to cause death in ordinary course of nature. D.A./both reports. (Sd.) Dr. Mubashir Ahmad Mirza, District Health Officer, Sialkot. (Member) (Sd.)
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Dr. Rustam Ali Bhatti, Medical Superintendent Allama Iqbal Memorial Hospital, Sialkot. (Chairman of the Board) (Sd.) (Sd.) Dr. Ghafoor Hussain, Dr. Muhammad Nawaz Ch, Casualty Medical Officer, Senior Medical Officer, (Member) (Member) No,2291-93/Admh/97, 27-6-1992 Copy forwarded to the:--- 1. Deputy Commissioner Sialkot 2. Superintendent of Police Sialkot. 3. Assistant Commissioner Pasrur for information and necessary action. (Sd.) Medical Superintendent Allama Iqbal Memorial Hospital Sialkot" 11. Anyway the 2nd Medical Board consisting of six Doctors headed by Dr. Khursheed Ahmed Khan, Surgeon Medico Legal, Punjab, after the disinterment of the dead body upon the orders of the Secretary Health, Government of Punjab, on 18-8-1997, conducted the systemic examination of the dead body and found the following injuries:--- "Skull. The skull was found fractured in multiple pieces. The skull reconstructed by putting all the available pieces together. The following fracture lines were found. On right side of fracture line extends from posterior occipital sutures over to parietal hone and joined the other fracture line extending vertically over temporal and parietal bone up to coronal suture." 12. The 2nd Medical Board recorded its opinion as under:--- "The board was of the unanimously considered opinion that the body was in advance stage of putrefaction and therefore soft tissue findings cannot be elicited at this stage. The autopsy findings on the skull were consistent with death due to blunt trauma to the head. ' Exh.P.E. The correct carbon copy of the report of Medical Board which bears my signatures and those of the other members including the Chairman." 13. P.W.8 Dr. Muhammad Akmal Shaheen who had deposed on behalf of the Board during cross- examination stated as follows:--- "When the skull was reconstructed, there was no hole or deficit in the bones of the skull which indicated that the fractures were due to blunt trauma." 14. Other relevant facts for disposal of these appeals are that Muhammad Saleem, Head Constable had escorted the dead body on 24-4-1997 to the mortuary at Sialkot where the post-mortem was conducted by the accused Doctors. He received from them the report Exh.P.A. Which was impugned, and the last worn clothes of the deceased. Khalid Hussain, Head Constable P.W.2 was a Muharrer at Police Station Pasrur. On 24-4-1997 he was handed over nine sealed phials, two sealed envelopes, a sealed parcel containing blood-stained cotton, a sealed parcel containing .30 bore pistol, a sealed parcel containing an empty and a sealed envelope containing finger prints of the deceased for safe custody, which he kept in the Malkhana and on 2-5-1997, he gave these parcels to Anwaar-ul-Haq, Constable P.W. For onwards transmission to the office of the Chemical Examiner, Lahore. 15. Mr. Abdul Ahad, D.S.P., C.P.O., Lahore, was then posted at Pasrur. After he received the complaint of Muhammad Amin, he got the formal F.I.R. Exh.P.B. /1 recorded: He then made an application to the Assistant Commissioner, Pasrur for judicial inquiry. He got prepared the injury statement Exh.P.G. And inquest report Exh.P.H. Of the deceased and forwarded the dead body to the mortuary for post-mortem examination. 16. He secured blood through a cotton swab from the spot and sealed it into a parcel. He also secured a pistol .30 bore which he took into possession vide memo. Exh.P.K. Besides the blood- stained pillow, quilt, Chadar and cloth. He also took into possession an iron box belonging to Iftikhar appellant. He got the photographs of the deceased taken. He inspected the place of occurrence.
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He prepared the site-plan Exh.P.N. He also received the last-worn clothes of the deceased vide Exh.P.A. He arrested Muhammad Zaman, S.-I., and thereafter the investigation was transferred from him. 17. Mian Muhammad Kalyar, S.-I. P.W.13 was later entrusted with the investigation of this case. On 4- 7-1997 he arrested Iftikhar Ahmed appellant who was previously a proclaimed offender and got his physical remand on 5-7-1997. He had moved the Surgeon Medico Legal Punjab for opinion with respect to the variance of opinion in the post-mortem examination reports and later he arrested the accused Doctors. He went on to state as under:-- "On 28-8-1997 I submitted my final report according to which I recommended trial of Muhammad Arshad A.S.-I. Since P.O. And Iftikhar Ahmed Constable under section 302, P.P.C. While recommended trial of Dr. Muhammad Nawaz, Dr. Abdul Ghafoor, Dr. Mubashar Ahmad and Dr. Rustam Bhatti under sections 201/197, P.P.C. While against the rest of the accused persons I moved for legal opinion." "This Muhammad Azam had further told me that Iftikhar constable had directed him to provide food to the deceased who was confined by him in that room. This witness had stated that in accordance with routine he had un-bolted the door at about 8-00 p.m. To provide food to the deceased and then he had seen the dead body." "It is correct that I had written that the Board of Doctors of Sialkot had opined that the injures on the person of the deceased were caused by blunt weapon, while the Special Medical Board constituted thereafter had also reached the same view. The Board of doctors of Sialkot had given the final report on 27-6-1997 which was stated to be based on the report of the Bacteriologist and the Chemical Examiner. The supplementary report dated 10-5-1997 by these doctors of Sialkot Board was sent to the S.H.O. Police Station Pasrur." 18. Muhammad Anwar, S.-I. P.W.15 is a witness of securing of the blood-stained cotton, .30 bore pistol and an empty as well as the parts of the bedding which were taken into possession vide memo. Exh.P.K. And Exh.P.L., besides the metal box belonging to Iftikhar Ahmed-accused having various articles. Upon his request non-bailable warrants of arrest were issued on 22-5-1997 against Muhammad Arshad and Iftikhar. He took into possession photographs of the deceased which had been taken earlier. On 27-5-1997 he got issued the proclamation against Muhammad Arshad and Iftikhar Ahmad and deputed a Constable for their arrest. 19. Iftikhar Ahmad appellant in answer to a question whether the place where the killing took place was his room and the iron box which was taken into possession along with its contents belonged to him stated:--- "The box and the contents are mine, but I along with other police officials live in the room of this police station." ' He went on to say:--- "It is correct. My pistol was lying in the box, bolt of which stood broken and probability of the deceased himself taken it out from the box. It was the version of the police that the deceased had committed suicide. But as the brother of the deceased was in Army, on account of pressure from the Army, the pressure of excessive publicity in the Newspaper, a visit of Chief Minister in the house of the deceased forced to the Investigating Officer to change the first version of suicide and to treat it as a murder. Even the doctors who had conducted the first post-mortem were arrested as accused persons much before the second post-mortem was got conducted. Therefore, the investigations were neither honest nor fair." ' As to why this case made against him, he stated:-- "Muneer Ahmad P.W.10 is the real Phhuphha of the deceased, while Khadim Hussain given up P.W. Was the first cousin of the deceased. I was not involved for the murder of Shakeel Amin, nor had any reason to do so. This evidence was fabricated against me. I had no previous grudge against
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the deceased. I was involved in this case on account of party faction after the registration of the case." 20. The case of the accused doctors was one of the denial. According W them, they had been misled by a blackening around the wound of injury on the skull as well as on account of entry in the police paper i,e, the inquest report which stated that fire-arm had been used, so they had opined that the death had taken place because of the use of firearm. But they went on to say that they had sent the viscera and the margins of the skin to the Bacteriologist and the Chemical Examiner for their opinion and, therefore, after having sent the report they followed it up with another report stating that the post-mortem report Exh.P.A. Already sent was a tentative report and a final report would be given after the report from, the Chemical Examiner and Bacteriologist were received. 21. Muhammad Javed D.W.1 was the witness of the defence. He was a constable. According to him, Iftikhar and Muhammad Shafique, Constables had accompanied Muhammad Zaman, Inspector/S.H.O., on an official vehicle for patrol duty at about 4 p.m. And they returned at about 8- 30 p.m. As to whether their departure and their return had been entered in the police diary/register, he stated:--- "It is correct that in Serial No,36 of the daily register dated 23-4-1997 of 4-00 p.m. Shows that Column No,3 was left blank and a big question mark is present the entry. We all had returned to the police station at about 8-30 p.m. I do not know that on our return the Muharrer had recorded our return in the daily diary or not. I do not know if Inspector Zaman accused had himself entered our return in the daily diary. Shafique Constable No,587 remained with us throughout. I do not know if according to Report No,40 of 23-4-1997 which was recorded at 6-20 in the evening this Shafique Constable No,587 had returned from duty to the police station along with an A.S.-I. When we returned to the police station Manzoor A.S.-I., Ashraf Muharer and Khalid Naib Muharrer were only present in the police station and we had stayed for the night in the police station. S.S.P. And D.S.P. Abdul Aahad, the Assistant Commissioner had also come to the police station during the night." 22. Muhammad Azam appeared as a Court witness. According to him, he was uetained on 23-4- 1997 in the police station under section 54. He was then a wagon driver. He stated:-- "Iftikhar accused had at about 4-30 p.m. Told me to provide food to a man who was in the adjoining room. Iftikhar Constable then left the police station. At about 8-00 at night when my food was sent to the police…
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